Booker v. Booker

636 So. 2d 796, 1994 WL 159872
CourtDistrict Court of Appeal of Florida
DecidedMay 3, 1994
Docket93-3729
StatusPublished
Cited by12 cases

This text of 636 So. 2d 796 (Booker v. Booker) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Booker v. Booker, 636 So. 2d 796, 1994 WL 159872 (Fla. Ct. App. 1994).

Opinion

636 So.2d 796 (1994)

Shawn T. BOOKER, and his parents, Glen S. Booker and Rosa L. Booker, Appellants,
v.
Pamela L. BOOKER, Appellee.

No. 93-3729.

District Court of Appeal of Florida, First District.

May 3, 1994.

H. Michael Madsen and John W. Forehand of Messer, Vickers, Caparello, Madsen, Lewis, *797 Goldman & Metz, P.A., Tallahassee, for appellants.

Laura S. Thrasher, Tallahassee, for appellee.

ZEHMER, Chief Judge.

Appellants are the Father and paternal grandparents of the minor child involved in this case. They appeal the trial court's order dismissing, on grounds of forum non conveniens, their "Verified Petition to Determine Paternal Responsibility and Visitation Rights" with respect to the child. We reverse because the order contravenes the provisions of section 61.1316, Florida Statutes (1991).

This case implicates the Uniform Child Custody Jurisdiction Act (UCCJA), as enacted in sections 61.1302-61.1348, Florida Statutes (1991). The marriage of the Father and the Mother, Appellee, was terminated by a final judgment of dissolution rendered in January 1990 while the Father was incarcerated in prison. That judgment, entered by the trial court below, awarded the Mother sole parental responsibility of their minor child and decreed that the Father "shall not be entitled to share parental responsibility." The judgment was silent as to the Father's visitation rights, and it reserved jurisdiction "to determine in the future any child support rights the parties' minor child may have."

Soon after his release from prison in April 1992, the Father filed the instant petition in the court that granted the final judgement of dissolution seeking to determine his rights to visitation with the child. He was joined in the petition by his parents, the child's paternal grandparents. The petition alleged that the Mother and child had recently removed themselves from Florida, and that until then, the Father had maintained a regular and close relationship with the child, in that she often visited the Father during his incarceration. It also was alleged that the child visited regularly with the grandparents until shortly before she was moved from the state. The petition further alleged that since the Father's release from prison in April 1992, he has displayed remarkable rehabilitation in that he has obtained full-time employment and has been promoted to manager by his employer; he has remained free of alcohol and drugs; and he has attended church regularly with his parents (who moved to Tallahassee to be near the Father during his incarceration).

For purposes of jurisdiction under the UCCJA, the petition alleged that the child had resided in Tallahassee, Florida, from the date of her birth on November 14, 1988, until on or about April 23, 1992, when Appellants believe the child was taken by the Mother to Houston, Texas. Significantly, the exact whereabouts of the Mother and child were not confirmed when the petition was filed and still have not been revealed to the trial court or this court.[1] The petition sought to clarify the trial court's judgment regarding visitation, and if the court should determine that no visitation rights existed, Appellants sought to modify that judgment to allow reasonable visitation by them. The petition was filed on August 20, 1992, less than 6 months after the date the child was believed to have moved to another state.

Appellants were unsuccessful in determining the residence of the mother and child and thus notice and process could not be personally served on her. Eventually, on the Father's motion, the trial court authorized process to be served on the Mother by publication pursuant to paragraph (d) of subsection 61.1312(1), Florida Statutes (1991).[2] The motion and supporting affidavit established that after a diligent and extensive search, the Father and grandparents were unable to determine the whereabouts of the Mother and the child. Their attorney had learned what was believed to be an accurate address and telephone number for the Mother's mother in *798 Miami, Florida, but when the attorney called that number and explained he was trying to contact the Mother, the woman on the phone became hostile and uncooperative, and refused to disclose the Mother's whereabouts. Several other measures were employed in an effort to contact and serve the Mother, but without success. Finally, a private investigator was employed, who ran several skip trace searches and turned up one new address in Houston, Texas. Copies of the petition and summons were sent with return receipt requested to the post office box, as well as to two other different street addresses in Houston. The copies sent to the post office box were returned with the notation "addressee unknown," and the copies sent to the other addresses went unclaimed.

Pursuant to the trial court's order allowing service by publication, a Notice of Action was then published once a week for four consecutive weeks beginning on May 20, 1993, in the Tallahassee Democrat, a daily newspaper published in Leon County. Additionally, as required by the court, notice was mailed to the Mother's mother in Miami.

Eventually, through means not revealed by the record, the Mother gained notice of the petition and, appearing specially through counsel on June 21, 1993, filed a Motion to Dismiss and Motion to Quash Service. The unsworn motion asserted that the trial court lacked subject-matter jurisdiction because the child did not live in Florida for the 6 months preceding the filing of the petition; that the trial court lacked personal jurisdiction over the Mother because the petition failed to allege any basis for long-arm jurisdiction; that service of process and service by publication were insufficient; and that the petition, itself, failed to state a cause of action because it failed to allege specifically the best interests of the child and a substantial change of circumstances occurring since the entry of final judgment.

This motion was heard by the trial court on September 29, 1993, at which time the Mother was represented by her attorney. As a result, the trial court entered the order under review. No evidence was presented to the court in support of the Mother's contentions that she and the child resided in Texas; the only information before the court was the speculative allegation in the petition that the Mother was believed to reside at an unknown location in Houston. Nevertheless, the trial court dismissed the petition

on the express condition that the Mother files with the Court within 14 days from the date of this Order a letter from an attorney admitted to practice in the state of Texas stating that he or she is authorized to and will accept service of process for the Mother in any proceeding instituted in Texas to determine custody or visitation rights as to the parties' minor child.

The order further provided that should the letter not be received, the Mother's motion to dismiss and quash service of process would be denied. A letter from a Texas attorney setting forth authorization to represent the Mother in Texas was filed with the court on October 8, 1993, and the petition thereupon stood dismissed.

Appellants argue that the trial court obviously dismissed the petition on the basis that Florida was an inconvenient forum, and that the court erred in doing so without making the requisite findings of fact. We agree. The trial court had jurisdiction of the dissolution and custody dispute by reason of its entry of the final judgment, which expressly retained jurisdiction to consider future child support issues.

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Cite This Page — Counsel Stack

Bluebook (online)
636 So. 2d 796, 1994 WL 159872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/booker-v-booker-fladistctapp-1994.